By Shrishti Verma, Student, Symbiosis Law School Hyderabad
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Recently the Andhra Pradesh High court was hearing the petition of Habeas Corpus filed by a detained individual. Subsequently, the Andhra Pradesh High Court ordered the current Andhra Pradesh government seeking to respond on whether there is a situation of “constitutional breakdown” in the state. The Andhra Pradesh High Court then approached the Supreme Court while challenging the impugned order after contenting that there is the breach of the doctrine of separation of power “since it is the President only who can be empowered to go into the question of the breakdown of constitutional machinery defined under article 356 of the Constitution of, not the judiciary.” Whereby the apex court expressed this order issued by Andhra Pradesh High Court as disturbing and directly in overreach by its judicial power. Ultimately, the Supreme Court stayed the previous order by Andhra Pradesh High Court. [1]
For building an understanding over the Article 356 in Indian Constitution, first we have to surpass through the origin, its inclusion in the constitution or even before that we have to understand the concept of federation and various trending changes affecting it. The term federation can be understood as political experimentation through which the work of the national government and the various state governments are distributed for the proper functioning of the country. Historically, there was the trend of unitary government in the various countries but with the change in time, it was difficult for the unilateral form of government to properly govern and cater the needs and focuses on various critical issues, therefore the central government started allying with other regional states for resolving the common problems which initially related to defense then engulfed other areas like public order, public health. The USA in 1789 was the first to adopt the concept of federal states in its constitution, followed by other countries like Australia, Canada and various others with the federal constitution cropped up.[2]
Federation can be determined as the negotiation between the regional autonomy and national integration, further, both being the separate legal entity, drives their powers from the federal constitution. But in the present times, we can notice that it takes one step ahead of where it creates the more visible national government apart from the state government present in any country. In other words, the more powerful centre presents with powerful state autonomies. As further K.C. Wheare puts it, “there is a single authority for the whole area in respect of some matters and there are independent regional authorities for other matters”.[3]
The USA (1787) being the oldest federal constitution rejects any system which does not fall under the category of federalism. But most of the countries are following federalism in their own versions, and we can determine it by observing their constitution, which is considered as the roots of the system they are following. The most common change which was observed under the years in the concept of federalism was the strong central tendency as compared to the other state government of that nation. Later this evolution of the federal constitution was further opted by the USA with the aid of the Supreme Court which gave the liberal interpretation of the power of the state and commerce[4] and general welfare or the supremacy clause in Art VI(2) or defense [Art.l S.8(l)] of the U.S. Constitution as well as by inventing the judicial doctrine of ‘implied powers’[5] of the federal legislature, national pre-emption and judicial recognition of cooperative federalism[6], affected the conventional balance between Union and states. In the same vein, Canada also walked in the same trail after Australia, where the strong central government and the powers of the state were confined under Section 92 and residuary power were vested in the union under Section 91 of the Constitution of Canada. Besides this, the various judicial pronouncement further strengthens the central government by liberal interpreting section 92(13) [7] and restricted the powers of the state legislature. Ultimately, the federal law will prevail over the state law.
After analyzing several of these conditions, constituent assembly in India wanted to opt for the basic principle of this version of federalism. But the confusion, economic and social pressure, poverty, prompted the Indian constitutional makers to opt for Union of States. Further, they deliberately avoided using federalism to strengthen both the union and the state. This unique nature was further defined by KC Wheare, to classify “the Indian Constitution as quasi-federal’ federalism with strong central tendency”. The influences of such evolution can be observed in Section 93 of the Government of India Act,1935. Section 93 provides that: “if a Governor of a province is satisfied that the situation has arisen in which the government of a province cannot be carried out in accordance with the provision of the said Act, he could by proclamation assume to himself, all or any of the powers vested in or exercisable by a provincial body or authority including the ministry and the legislature and to discharge those functions in his discretion. The only exception was that under this section, the Governor could not encroach upon the powers of the High Court.”[8] This provision was opted by our Indian constitution makers as the reflection of being federal in the explicit terms where the union government vested with more power which also encompasses the union intervention in the state matters. The mentioned version of Indian federalism is in concurrence with the point of portraying unity out of diversity. Although in 1915, G.K. Gokhale in his Political Testament did raise this issue of provincial autonomy[9] implying thereby both freedom of Provincial Governments from Central control and responsible governments in the Provinces.[10] But on the separate end, the farmers were also concerned with the underlying problems throughout the country as in the form of external exaggeration in Jammu and Kashmir, rising of various disruptive forces; rising exploitation and violence as the result of partition. Therefore, they considered the principle of section 93 for dealing swiftly with all above mentioned critical issues. As a result, special power granted to the union government was accepted and “it was agreed that the President would be given the powers of suspending the state Legislature and Government. Initially, it was envisaged that the Governor could issue a proclamation if a state fails to maintain peace and tranquility making it difficult for a state to carry out the administration in accordance with the Constitution.”[11] Later, the constitutional assembly decided to nominate the governor with the duty of furnishing report to the President on the circumstances preliminary in his state.”
The Constitution assembly included this article in the constitution with the responsibility to deal with the situation when the state actually threatened for an actual breakdown of the constitutional arrangement then the president in the effect of the union government and governor would resolve the matter by constitutionally using that article. This is directly proportional to the principle of parliamentary democracy; therefore the union government will be accountable for all the actions of the Parliament. While imposing this article they have underlying principle beneath this order as according to them this principle of centre interfering in the administration of provincial affairs is not an invasion but must be seen as the responsibility imposed by the constitution upon the centre which should not be polluted by arbitrariness and unlawfulness.
“Further replying to the criticism of being not found in any other constitution, where it was observed that these principles were based on the Principle Underlying Article IV, section 4 of the United States Constitution which provides, “the United States shall guarantee to every State in this Union a Republican Form of Government and shall protect each of them against invasion and on an application of the Legislature or the Executive (when the Legislature cannot be convened) against domestic violence”. The first part of this provision is known as the guarantee clause38.” Later after observing this provision the constitutional framer’s drafted article 277 A (Now Article 355), wherein concurrence to the first part of the article, instead of invasion and domestic violence they used external aggression and internal disturbance of wider arena. But the US provision in the latter part does not prescribe in the manner in which it is described in the Article 356 and 357. The constitutional makers strangely felt that these articles were necessary for the exceptional situation. But in the various cases, these exceptional situations are created, so that the union can overpower the state government for their own benefit. As later observed by Ambedkar that, “it is not altogether to deny that there is a possibility of this Article being abused, or employed for political purposes. But the objection applies to every part of the Constitution which gives the power to override the provinces. That such article will never be called into operation and that they would remain a dead letter. If at all they are brought into operation, the President who is endowed with these powers will take proper precautions before actually suspending the administration of the provinces. The first thing he would issue a Chapter One: Adoption of Article 356 in the Constitution 15 warning to a province that erred, that things are not happening in which way they are intended to happen by the Constitution. If the warning fails, the second thing for him to do is to order for elections, allowing the people of the province to settle matters by themselves. It is only when these two remedies fail that he would resort to this Article.”[12]
After analyzing the purpose, history, the inclusion of this article, let us cover up some judicial precedent concerning this article. The validity of the discussed article was challenged various times before the various High Courts and also in Apex court.
In, K.K. Aboo V. Union of India[13] it was observed that it is in the parliament’s discretion, to approve or disapprove a proclamation under Article 356. But the court did not decide on the question of if a particular action taken was constitutionally valid. Further, the governor’s report attempting to invoke Article 356 will not be considered as the violation of Article 163 or 164. This was merely an attempt to set up one such constitutional government. It was also observed that the constitutional crisis is not created merely because the presidential rule was imposed, but because of the hung assembly with no majority. Court further believes that “Article 356 of the Constitution does not prescribe any condition for the exercise of powers there under by the Parliament, except the “satisfaction of the President ‘’. And that the facts and circumstances in this case clearly establish that the President had ample material for such satisfaction before he promulgated the Proclamation” and “Article 356 confers wide powers on the President and the judicial interference is uncalled for.” In another case of Rao Birendra Singh V Union of India [14] before Punjab and Haryana high court it was observed that “the President’s constitutional power was not amendable to the jurisdictional control of the High Court because the President did not act on behalf of the “executive” of the Union but in a Constitutional capacity, which is beyond judicial review. The court further observed that the reconsideration of an emergency was vested in Parliament“ In A. Sreeramalu vs. Unknown, [15] Justice Chinnappa Reddy examined the general scheme of the emergency provision, “held that the President had been given emergency powers which were kept in check by Parliament, and took the view that the President’s powers in this regard were of a special constitutional nature and not just an exercise of executive action, which is outside the scope of judicial review. And that the satisfaction of the President is a matter specially entrusted to him by the Constitution. The Constitution does not enumerate the situation for applying Article 356 nor is there any ‘satisfactory criteria for judicial determination’ of the considerations leading to Presidential Rule. The very absence of satisfactory criteria makes the question intrinsically political and beyond the reach of the courts.“
In State of Rajasthan v. Union of India case [16] which was heard in the SC Chief justice Mirza Hameed Ullah beg says that healthy convention should be formulated so that the power under Article 356 must neither be exercised arbitrarily nor it should be exercised when the political situation really calls for it. It is not for the court to formulate and much less to enforce the convention to regulate the exercise of such an executive power because this is a matter which entirely rests with the executive. Only on the mala fide and extraneous grounds, the court would have to examine it because in that case there would be no satisfaction of the president.
In the S.R Bommai vs. UOI [17] case, SC laid down the important guidelines regarding article 356 of the Indian Constitution where it was decided by the majority that the use of article 356 was not really subject to review by the court. It also says that the SC and the High Court can ask the union on what basis the president’s rule is imposed. The court relied on the previously discussed judgment of 1977 case, State of Rajasthan vs. Union of India.
Conclusion
After discussing and observations made regarding the actual insertion of Article 356 and also discussing the utilization of its power by the certain authorities because of the specific reasons.
Through this incident we should realize that our constitution as being the living entity has the capability to deal with all the upcoming problems, but this capability can be fully utilized only when the power devoted to respective constitutional institutions will be utilized by them constitutionally, without misinterpreting or overreaching it. Beside this, the concept of judicial activism which is over utilized in this case must be only considered in the cases of rare exceptions, as overreaching of this power can harm the institution of the judiciary itself. Further, we observed that there is the requirement of the Presidential activism together with the governor’s responsibility to act judicially, impartially and efficiently in the matters related to Article 356.
Subsequently, analyzing various judicial precedents ascertains on the point that the judiciary has a limited role over the jurisdiction of this article, and there is the President and the Governor as an authority assigned by this article for its proper constitutional implementation when the need arises. The role of the judiciary is to examine and review the implementation based on the constitutional ground and the other grounds which are previously defined in the case of State of Rajasthan vs. Union of India and Bommai case. Further, in the present case of AP High court’s order was an overreach of the judicial power and interfering with the doctrine of separation of power as itself is influencing the decision of the executive authorities and is doing the function which they are not entitled to. [18]
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References
[1] We Find It Disturbing’ : Supreme Court Stays Andhra High Court’s Attempt To Examine ‘Constitutional Breakdown’ In AP https://www.livelaw.in/top-stories/we-find-it-disturbing-supreme-court-stays-andhra-high-courts-attempt-to-examine-constitutional-breakdown-in-ap-167394 (2 Jan, 2021).
[2] MD. SHAMSUL AREFEEN, A CRITICAL STUDY OF ARTICLE 356: TRENDS DURING THE NEHRU AND POST-NEHRU ERA, Aligarh Muslim University, 132-166 (2006).
[3] K.C. Wheare, Federal Government 35 (Oxford University Press 1951).
[4] Gibbons v. Ogden, (1824) 22 U.S.I; Heart of Atlanta v. U.S., (1964) 379 U.S. 241.
[5] Mc Culloh V. Maryland, (1819) 201 U.S. 495.
[6] Carmichal v. Cole Co., (1937) 201 U.S. 495.
[7] The Constitution act, 1867 Section 92 (13), (Canada)
[8] National Commission to Review the working of Constitution; a paper on Article 356 of the Constitution
[9] Berriedale Keith, Speeches & Documents on Indian Policy, 11 (Nabu Press, 2012).
[10] Report of the Reforms Enquiry Committee, 1924.
[11] Sira Rao, The Framing of India’s Constitution, 6 (2015).
[12] Sarkaria Commission Report. 36. 36. CAD VIII. P. 424.-469
[13] K.K. Aboo V. Union of India, AIR 1965 Kerala 229.
[14] Rao Birendra Singh v. Union of India AIR 1968 (Punjab) 441.
[15] A. Sreeramalu vs. Unknown A.I.R. 1974 (AP) 106.
[16] Slate of Rajasthan v. Union of India AIR 1977 S.C. 1361.
[17] S.R Bommai vs. UOI, 1994 3 SCC 1.
[18] “Article 356”, https://www.drishtiias.com/daily-updates/daily-news-editorials/article-356.
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